Occupational Health and Safety Act 2004 (review)

This page provides general information and should not be considered as legal advice. Seek legal advice if you are unsure about your legal rights. Be aware that the law can change.

VCAT has a limited power to review certain decisions made by the Victorian WorkCover Authority under the Occupational Health and Safety Act 2004.

A separate information page deals with review of decisions made by the Authority under the Occupational Health and Safety Regulations 2007.

Cases we can hear

If you are an eligible person in relation a reviewable decision made by the Authority, including a decision made on internal review, you may be able to apply to VCAT for a review of the decision.

Section 127 of the Act sets out a table of reviewable decisions; and who is an eligible person to apply for a review in respect of each reviewable decision.

You may have to apply for internal review first:

If someone other than the Authority (most commonly an inspector) has made a reviewable decision, you must first apply to the Authority for internal review, and must do so within 14 days of the decision coming to your notice or such longer period as the Authority allows

Reviewable decisions and eligibility under the Act

The following is a summary of the reviewable decisions under the Act, and the eligible persons. Be aware that the law can change and always check:

that the decision you want to review is a reviewable decision under the current law and

whether you need to seek internal review first.

Decision about a designated work group

When an inspector determines particulars about a designated work group, under section 45 of the Act, an employer or employee affected by the decision is an eligible person.

Election of a Health and Safety representative

When an inspector appoints someone to conduct the election of a health and safety representative for a work group, an employer or employee whose interests are affected by the appointment is an eligible person.

Provisional Improvement Notice

When a health and safety representative issues a provisional improvement notice and an inspector attends the workplace to either cancel or affirm the notice, the following people are eligible persons:

The person to whom the provisional improvement notice was issued

The health and safety representative who issued the notice

A health and safety representative representing an employee or independent contractor (as set out in sections 45 (1)(e) and 48(1)(e)) whose interests are affected by the decision

An employee or employer whose interests are affected by the decision.

Reasonable cause for health and safety concerns

When an inspector attends a workplace to resolve a health and safety issue and decides under section 75(4)(b) that there was reasonable cause for employees to be concerned for their health or safety, the following persons are eligible persons:

an employer or employee affected by the inspector’s decision

the health and safety representative whose direction to cease work gave rise to the decision.

Item seized by an inspector

When an inspector, exercising powers of entry under Part 9 of the Act, seizes an item and then later returns it on any terms or conditions, the following persons are eligible persons:

the owner of the seized item

a person who has in interest in the item

a person whose interests are affected by the decision.

Forfeiture of seized items

If an item seized by an inspector is forfeited to the Victorian Workcover Authority under section 109 of the Act, the following persons are eligible persons:

the person to whom the Authority has issued a notice under section 109(2)

any other person who has an interest in the seized item or whose interests are affected by the Authority’s decision.

Issue of a non-disturbance notice

When an inspector issues a non-disturbance notice under section 110 (1) of the Act, the following persons are eligible persons:

the person to whom the notice is issued

an employer or employee whose interests are affected by the decision to issue the notice

a health and safety representative who represents an employee or independent contractor (as set out in sections 44(1)(e) or 48(1)(e)) whose interests are affected by the decision to issue the notice.

Issue of an improvement notice

When an inspector issues an improvement notice under section 111 of the Act, the following persons are eligible persons:

the person to whom the notice is issued

an employer or employee whose interests are affected by the decision to issue the notice

a health and safety representative who represents an employee or independent contractor ( as set out in sections 44(1)(e) or 48(1)(e)) whose interests are affected by the decision to issue the notice.

Certification that matters in an improvement notice have been remedied

When an inspector certifies, under section 111(3)(a) of the Act, that the matters the subject of an improvement notice have been remedied, the following persons are eligible persons:

the person to whom the notice is issued

an employer or employee whose interests are affected by the decision to issue the notice

a health and safety representative who represents an employee or independent contractor (as set out in section 44(1)(e) or 48(1)(e)) whose interests are affected by the decision to issue the notice.

Issue of a prohibition notice

When an inspector issues a prohibition notice under section 112(1) of the Act, the following persons are eligible persons:

the person to whom the notice is issued

an employer or employee whose interests are affected by the decision to issue the notice

a health and safety representative who represents an employee or independent contractor (as set out in section 44(1)(e) or 48(1)(e)) whose interests are affected by the decision to issue the notice

a health and safety representative whose direction under section 74 to cease work gave rise to the inspector’s decision.

Certification that matters in a prohibition notice have been remedied

When an inspector certifies that the matters covered by a prohibition notice have been remedied, the following persons are eligible persons:

the person to whom the notice is issue

an employer or employee whose interests are affected by the decision to issue the notice

a health and safety representative who represents an employee or independent contractor (as set out in section 44(1)(e) or 48(1)(e)) whose interests are affected by the decision to issue the notice

a health and safety representative whose direction under section 74 to cease work gave rise to the inspector’s decision.

Variation or cancellation of a non-disturbance notice, improvement notice or prohibition notice

When the Victorian WorkCover Authority decides to vary or cancel a non-disturbance notice, an improvement notice or a prohibition notice, the following persons are eligible persons:

the person to whom the notice is issued

an employer or employee whose interests are affected by the decision to issue the notice

a health and safety representative who represents an employee or independent contractor (as set out in section 44(1)(e) or 48(1)(e)) whose interests are affected by the decision to issue the notice

a health and safety representative whose direction under section 74 to cease work gave rise to the inspector’s decision.

Legislation that gives VCAT the power to hear these applications

If you have a decision document, use it to help you complete the VCAT application form and attach a copy of the document to your application.

Time limits

Check the decision letter carefully for time limits to apply to VCAT and any other conditions. Remember you may have to apply for internal review first.

Applications about forfeiture of an item

For an application about forfeiture of an item under section 109, you should make your application to VCAT within 28 days after the day on which the decision first came to your notice.

All other applications

For any other application, you should make your application to VCAT within 14 days after the latest of:

the day on which the decision first came to your notice

the day on which you were given a statement of reasons for the decision if required by the VCAT Act 1998

the day on which you were informed that a statement of reasons will not be given.

Internal review time limits

If someone other than the Authority (most commonly an inspector) has made a reviewable decision, you must first apply to the Authority for internal review, and must do so within 14 days of the decision coming to your notice or such longer period as the Authority allows.

What can VCAT order?

Unless the relevant Act of Parliament gives us different powers, VCAT can:

affirm the original decision, in which case the original decision will stand

vary the decision

set aside the decision and substitute our own decision

set aside the decision and remit (send back) the matter for reconsideration by the
decision maker
A person who makes or has made a decision under legislation that gives them this authority.
giving directions or recommendations

invite the decision-maker to reconsider their decision at any time during the case .

Organisations that may be able to help you

Enforces Victoria’s occupational health and safety and accident compensation laws. Provides benefits to injured workers and assists with return to work. Often a
party
A person or organisation directly involved in a VCAT case, including a person or organisation that has brought the case before VCAT or who is defending claims made against them.
to VCAT proceedings.

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